Foreseeing Likely Outcomes on 3 Ballot Questions, Massachusetts Legislators Pass Law to Increase Minimum Wage, Grant Family and Medical Leave to Employees, and Require an Annual Sales Tax Holiday

They’re calling it a “grand bargain,” but the deal recently reached among legislators, activist groups, businesses and Gov. Charlie Baker is probably more of grand concession than anything else. Seeing the writing on the wall of strong support for three November 2018 ballot questions to raise the minimum wage to $15/hour, create sweeping new leave rights for Massachusetts workers, and reduce the state’s sales tax, the powers-that-be in Boston decided they’d better move to shape the new laws lest they be forced by voters to accept them in less desirable forms. On June 28, Gov. Baker signed the new bill into law. The proponents of all three ballot questions have agreed to withdraw them.

By the year 2013, the Massachusetts minimum wage may be $15.

By the year 2023, the Massachusetts minimum wage may be $15.

Highlighting the “grand bargain” is an increase to the state’s minimum wage from $11 to $15 per hour over a five-year period. This is despite the fact that the state only recently finished increasing the rate from $8 to $11 after many years of doing nothing on the topic. The new minimum wage rate will be $12 on January 1, 2019. From there, it will increase by 75 cents/hour each year until January 1, 2023, when it hits $15. The tipped wage rate – which is paid to workers who receive the bulk of their earnings as tips – will increase by 60 cents per year until it hits $6.75/hour in 2023. Tipped workers must still earn enough in tips to make the minimum hourly wage, and when they don’t employers must make up the difference. The new law will also eliminate the current requirement that retail establishments pay workers at the overtime rate for work on Sundays and holidays.

The new law also grants workers broad leave rights akin to those that now exist only for those covered by the Family and Medical Leave Act, which applies only to certain workers at companies with at least 50 employees. Beginning in 2021, employees can take 12 weeks of family leave and 20 weeks of medical leave – all paid – with job protection rights for their return to duty. While these leave amounts are a bit lower than what was proposed in a November ballot question, they represent a substantial change in current state law nonetheless. Employers need not fear that they alone will bear the cost of this new program. Pay for workers on leave will be funded by a new payroll tax that begins in July 2019. Contributions will be divided about evenly between employers and employees.

Finally, the statute mandates an annual sales tax holiday for a weekend every August. Businesses were pushing for this requirement by ballot question because legislators did not enact the annual event during the past two years. They proposed in the same ballot question that the state’s sales tax be reduced from 6.25% to 5%. The new law does not provide any tax reduction, so the rate remains as is. As to the sales tax holiday, it won’t apply to marijuana (whenever it’s sold in the Commonwealth), alcohol, boats, cars or any item that costs more than $2,500, among a few other items.

Massachusetts High Court Clarifies that Sick Leave is not Wages

Though most employment lawyers never thought of accrued sick leave benefits as a wage, it took only one, armed with a big enough sick leave balance, to test the question in Massachusetts’ highest legal venue. To the surprise of few, the law left the Massachusetts Supreme Judicial Court in the same form lawyers and lower court judges have long interpreted it. While accrued sick leave remains a benefit that employers now need to provide under Massachusetts law, it is not a wage that must be paid to departing employees who have accrued it on the company’s books.

The case’s high stakes lend a clue as to why it went as far as it did. At issue was $46,755 in accrued sick leave under a plan at the Massachusetts Port Authority. Though the benefits were ultimately paid to the employee, the check was cut about a year after he retired due to an arbitration proceeding that ultimately went his way. Under the Massachusetts Wage Act, wages due to employees must be paid promptly at departure from employment. The Plaintiff pressed a theory that this provision of the law was broken by the late payment and that he was consequently entitled to three times the amount of  accrued sick pay owed, plus reimbursement for all legal fees he incurred to collect his pay.

The SJC would have none of it, however. It cited to the Act’s definition of the term “wages,” which includes holiday pay, vacation pay and earned commissions but does not mention sick leave benefits. The court then contrasted the purposes of sick and vacation leave policies, noting that only the latter could be used for any purpose. Sick leave generally is not wages as a result, the court concluded, and could not be considered a wage under Massport’s specific policy of paying out accrued, unused sick leave under some circumstances. Those conditions made sick time at Massport a “contingent bonus,” such that it like other bonuses is not a wage covered by the Wage Act.

The case is Mui v. Massachusetts Port Authority, decided January 29, 2018.

2018 Ballot Question Proposes up to 26 Weeks of Paid Family and Medical Leave to Massachusetts Employees

If a coalition group called Raise Up Massachusetts gets its way, the Commonwealth will soon have a comprehensive new law that provides paid leave to employees for a variety of personal reasons. At the recent deadline for 2018 ballot questions, Raise Up submitted a voter-supported initiative it calls a Family and Medical Leave law. If approved at the polls next November, the new law will provide up to 26 weeks of paid leave annually to Massachusetts employees.

The ballot question divides paid leave into two general categories – “family” and “medical.” Under the former, employees will be entitled to up to 16 weeks of paid family leave each year to care for ill family members, bond with their children, or address military-related emergencies. They’ll be allowed up to 26 weeks to care for a covered service member, as that term is defined by the proposed law. For an employee’s own health condition, he/she will be allowed up to 26 weeks under the medical leave portion of the proposed new law. An employee who uses either family or medical leave will generally need to be restored to the same or a similar job without losing pay or other benefits. Pay will be capped at $1,000 per week.

Wage payments will not come directly from employers under the proposed Family and Medical Leave Law. Instead, a new agency called the Department of Family and Medical Leave will be created to collect employer contributions equal to .63% of employee and independent contractor payrolls. Half of the amount paid by employers can be recouped from workers. The Department of Family and Medical Leave will create regulations to implement and administer the new law. It will make eligibility decisions, pay benefits, and adjust contribution rates periodically as needed.

If voted into law next November, the Family and Medical Leave Law will take effect 18 months later. Contributions to the trust fund, however, will begin on July 1, 2019, roughly a year before the law takes hold. As with other employment laws, the proposed statute bars retaliation against employees who take advantage of its benefits. Any negative change to the terms and conditions of employment within six months of using paid leave will be presumptively retaliatory. Punishment can include up to three times the amount of any lost wages, damages as may be incurred, and reimbursement of legal fees.